Defendant's motion for sanctions disputed both claims, said they were false, and said the mediator would testify to their falsity if permitted. Plaintiff's counsel said the mediator gave advance permission to send the associates and for plaintiff to appear by telephone. There, defendant was only available for the mediation by telephone, and plaintiff's lead counsel sent two associates in his stead. Those rules mandate attendance by each party and by the lawyer who is primarily responsible for handling the trial of the case. Specifically, defendant said plaintiff and its counsel did not attend “in person” as required by the court’s Mediation Referral Order and accompanying Mediation Rules of the Southern District. The defendant in the case sought sanctions against plaintiff and its counsel for not properly participating in the mediation. That case centered on the veracity of statements made by plaintiff's counsel to the court in the wake of a failed mediation. Bandshell Artist Management, 2019 WL 6702069 (S.D.N.Y. ( See “The Protections and Limits of Confidentiality in Mediation,” two-part article in November and December 2006 “Alternatives,” published by the CPR International Institute for Conflict Prevention & Resolution.)Ī December 2019 decision from the Southern District of New York illustrates the balancing and cautious approach when applying the last of the above-listed exceptions, determining whether sanctions should be imposed upon counsel. Some of the statutory exceptions include (1) when disclosure is necessary for criminal prosecution (2) when necessary to prove coercion or fraud that led to the mediated settlement (3) in order to establish the existence or terms of a settlement agreement and (4) when necessary to impose sanctions or to discipline counsel in connection with a mediation proceeding. Those are usually statutory exceptions, but they also include judicially-made exceptions that balance the integrity and protections of the mediation process against even weightier needs and interests. Yet, as with most principles and policies, there are important competing interests that nibble at the edges of confidentiality, creating exceptions. The August 2005 Model Standards of Conduct for Mediators, issued jointly by the American Bar Association, American Arbitration Association, and Association for Conflict Resolution enshrine confidentiality as an immutable part of the process. It promotes a candid flow of information that informs the mediator of issues and concerns which, if resolved, could lead to settlement. Confidentiality of mediation communications and information is essential to its validity and effectiveness.
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